Bar Exam — Torts (MBE subject) flashcards
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Black-letter torts for the MBE: intentional torts and defenses, negligence duty through damages, death and damages rules, comparative fault, vicarious and strict liability, products, nuisance, defamation and privacy, and business torts. Not affiliated with or endorsed by NCBE.
Learn deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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To annoy a classmate, A yanks the backpack she is wearing. A meant no injury. Has A committed battery?Yes — battery is an intentional harmful or offensive contact with the plaintiff's person, and contact with something closely connected to the body, like a worn backpack, counts. An intent to offend is enough; the defendant need not intend injury.Intentional Torts › Harms to the Person
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A throws a rock at B, meaning to hit him. It misses and strikes C, whom A did not see. Is A liable to C for battery?Yes — under transferred intent, intent to commit assault, battery, false imprisonment, trespass to land or trespass to chattels carries over to an unintended victim, or from one of those torts to another.Intentional Torts › Harms to the Person
Watch out: transferred intent does not reach intentional infliction of emotional distress or negligence. -
Under the majority view from Palsgraf, to whom does a negligent actor owe a duty of care?Only to foreseeable plaintiffs — those within the zone of danger the conduct creates (Cardozo's view). Under the minority Andrews view, a duty is owed to anyone actually injured, with foreseeability addressed through proximate cause.Negligence › Duty
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A strong swimmer on a public beach watches a stranger drown and does nothing. Is the swimmer liable?No — there is generally no affirmative duty to rescue or aid a stranger.Negligence › Duty
Watch out: a duty arises from a special relationship (common carrier–passenger, innkeeper–guest, parent–child, employer–employee, business–invitee), when the defendant created the peril, or when the defendant begins a rescue, which must then be done with reasonable care. -
What makes an activity 'abnormally dangerous' so that strict liability applies?Even if everyone takes reasonable care, it still poses a foreseeable, highly significant danger of injury to people or property, and few people carry it on — blasting and storing explosives are classic examples. Liability extends only to harms within the risk that made the activity abnormally dangerous.Strict Liability
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A homeowner keeps a pet tiger in a sturdy enclosure, but it escapes despite every precaution and mauls a neighbor. Is the owner liable, and how would a dog bite differ?Yes — keepers of wild animals are strictly liable for harm from the animal's dangerous propensities, regardless of care. Owners of domestic animals are strictly liable only if they knew or had reason to know of the particular animal's dangerous propensity, unless a dog-bite statute provides otherwise.Strict Liability
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What must a plaintiff prove to recover in strict products liability?The defendant is a commercial seller in the business of selling the product (manufacturer, distributor or retailer), the product was defective when it left the defendant's control, and the defect caused injury while the product was used in an intended or reasonably foreseeable way. Privity with the defendant is not required.Products Liability
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One bottle in a batch of soda contains a glass shard that cuts a consumer. Which type of defect is this, and does the bottler's care matter?A manufacturing defect — the product departs from its intended design, unlike the other units off the line — and the seller is liable even though it exercised all possible care.Products Liability
Watch out: every commercial seller in the chain is strictly liable, from manufacturer to retailer. -
A neighbor's nightly outdoor parties make sleep impossible next door. What must the homeowner prove for private nuisance?A substantial and unreasonable interference with the use and enjoyment of her land, measured by its effect on a person of ordinary sensibilities. An unusually sensitive plaintiff or use cannot by itself make conduct a nuisance.Other Torts › Nuisance
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A factory illegally dumps waste into a public river. When may a private citizen sue for public nuisance?Only if she suffers harm different in kind from that suffered by the general public — for example, a commercial fishing business that loses its catch; otherwise, the action belongs to public authorities.Other Torts › Nuisance
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About these cards
Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Checked against the NCBE MBE Subject Matter Outline (edition dated 11/16/20; topic order only; no text copied) and standard torts hornbooks and casebooks used for reference only; rules paraphrased in original wording.
- U.S. Supreme Court opinions cited on cards (New York Times v. Sullivan, Gertz, Dun & Bradstreet, Milkovich) — public domain.
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